Draft Legitimacy (Amendment) (Jersey) Law 200-.

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A decision made (06/12/2007) regarding: Draft Legitimacy (Amendment) (Jersey) Law 200-.

Decision Reference: MD-C-2007-0065
Decision Summary Title :	Draft Legitimacy (Amendment) (Jersey) Law 200-		Date of Decision Summary:	20th November 2007
Decision Summary Author:	Julian Morris Policy and Research Manager		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	-
Written Report Title :	The Presumption of Legitimacy		Date of Written Report:	1st October 2007 – as presented to the meeting of the Legislation Advisory Panel
Written Report Author:	Law Officers Department		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)	Public
Subject: The proposed Draft Legitimacy (Amendment) (Jersey) Law 200-
Decision(s): The Chief Minister, acting on the recommendation of the Legislation Advisory Panel, agreed to lodge the draft Legitimacy (Amendment) (Jersey) Law 2000-
Reason(s) for Decision: The presumption of legitimacy is the presumption that the child of a married woman born during the marriage is taken automatically to be the husband’s child. The presumption, however, was not irrefutable. This is reflected in Article 2(2) of the 1973 Law under which the presumption may be rebutted by “strong and satisfactory evidence” that the husband was sexually impotent or was physically separated from the mother at the time of conception; or that the mother was guilty of adultery and that the father did not have marital intercourse with her at the time of conception. The draft Law would replace Article 2(2) with the following statement of the presumption of legitimacy and the single ground on which it would be able to be rebutted: “The fact that a child is born or conceived during the subsistence of a lawful marriage raises a presumption that the husband is the father of the child which may be rebutted only by strong and satisfactory evidence to the contrary.” This would not weaken the presumption of legitimacy as such, but would remove the list of specific grounds on which the presumption was able to be rebutted - because those grounds have to all intents and purposes become redundant with the advent of accurate blood and DNA testing. The draft Law would also amend Article 7 of the 1973 Law. Article 7 is concerned with who may apply to the Royal Court for a decree declaring that a child is illegitimate (i.e. rebutting the presumption of legitimacy). The draft Law would enable a man who claims to be the father of a child to make an application to the Court for a declaration of illegitimacy; and also to enable the mother of the child herself to make such an application.
Resource Implications: There are no financial or manpower implications.
Action required: Request the Greffier of the States to lodge the Draft Legitimacy (Amendment) (Jersey) Law 200- ‘au Greffe’ for consideration by the States in January 2008.
Signature:		Position: Chief Minister
Date Signed:		Date of Decision (If different from Date Signed):

Draft Legitimacy (Amendment) (Jersey) Law 200-.

Report

The presumption of legitimacy

1. The presumption of legitimacy is the presumption that the child of a married woman born during the marriage is taken automatically to be the husband’s child. The presumption existed in Norman customary law - as in a great many other European legal systems - and was expressed in the maxim pater est is quem nuptiæ demonstrant (celui est le père que le mariage désigne or, in English, ‘the father is whom the marriage shows’) 1 . It has been given statutory force in the Legitimacy (Jersey) Law 1973 (“the 1973 Law”) Article 2(2) of which provides that –

“The fact that a child is born or conceived during the subsistence of a lawful marriage raises a presumption that the husband is the father of the child . . .”

2. This protected the institution of marriage from the intrusion into the life of a family of the lover of an adulterous wife. The presumption, however, was not irrefutable. The husband could (if he wanted to) refuse to accept the life-time burden of bringing up another man's child. Thus, evidence that the husband was incapable of being the father (by absence, impotency, etc.) could displace the presumption.

3. This is reflected in Article 2(2) of the 1973 Law under which the presumption may be rebutted by “strong and satisfactory evidence” that the husband was sexually impotent or was physically separated from the mother at the time of conception; or that the mother was guilty of adultery and that the father did not have marital intercourse with her at the time of conception.

4. If the child was born within the first 180 days of the marriage, the presumption may be rebutted by showing that the husband did not have opportunities for pre-marital intercourse with the mother at the time of conception - but no evidence is admissible on this ground if the husband knew of the pregnancy at the time of the marriage or if he joined in registering the birth.

5. The draft Law would replace Article 2(2) with the following statement of the presumption of legitimacy and the single ground on which it would be able to be rebutted:

“The fact that a child is born or conceived during the subsistence of a lawful marriage raises a presumption that the husband is the father of the child which may be rebutted only by strong and satisfactory evidence to the contrary.”

6. This would not weaken the presumption of legitimacy as such, but would remove the list of specific grounds on which the presumption was able to be rebutted - because those grounds have to all intents and purposes become redundant with the advent of accurate blood and DNA testing. This is not to say that they could never be invoked an any case where, for some reason, a blood test was not feasible; but it would mean that they were no longer the exclusive grounds for rebutting the presumption. The requirement for “strong and satisfactory evidence” would remain, but that evidence would be able to take the form of the results of a DNA test or the like, as well as the form it takes at present.

7. The one provision that would fall away, however, is the bar on adducing evidence in support of a petition in respect of a child born within the first 180 days of marriage where the husband was aware, at the time of the marriage, that the mother was pregnant or was a party to the registration of the birth of the child (see paragraph 4 above).

Right to petition the Royal Court

8. The draft Law would also amend Article 7 of the 1973 Law. Article 7 is concerned with who may apply to the Royal Court for a decree declaring that a child is illegitimate (i.e. rebutting the presumption of legitimacy).

9. As mentioned earlier, what lay behind the presumption was the protection of the institution of marriage – so much so that only certain persons were ‘qualified’ to apply for a declaration of illegitimacy. Any man claiming to be the father did not, by reason of that claim alone, have a right to ask the Court to declare that the child was not fathered by its mother’s husband. Even the mother herself had no such right.

10. So it is that Article 7(1) of the 1973 Law restricts the range of persons who may apply to the Court to any person who “…is presumed to be the father of a child born in Jersey or born abroad of a woman who was domiciled in Jersey at the time of the birth, or any person whose right to any immovable or movable estate situate in Jersey is affected by the legitimacy of a child, whether born in Jersey or elsewhere”.

11. In the past, preventing the ‘real’ father from bringing a petition - even if it meant living a lie - was understandable given the deep social stigma and loss of rights and status that used to flow from illegitimacy. Better the pretence of legitimacy than the reality of bastardy. Nowadays, with accurate blood and DNA testing, not to mention less bigotry in matters relating to illegitimacy, the parties - as well as the Court - tend more to be concerned with ascertaining the truth than with shielding a child, or for that matter a mother or a family, from any perceived stigma. The draft Law would take account of this by widening the scope of Article 7 of the 1973 Law so as to enable a man who claims to be the father of a child to make an application to the Court for a declaration of illegitimacy; and also to enable the mother of the child herself to make such an application.

Financial and Manpower Implications

There are no financial or manpower implications.

1 See Le Gros: Traité du Droit Coûtumier de l’Ile de Jersey, page 450

http://sojedmdav/livelinkdav/nodes/23585003/WR - LEGLEGA-045 Report 20 07 07.doc